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Ask WALLSTREETESQ Your Own Question

WALLSTREETESQ
WALLSTREETESQ, Attorney
Category: Bankruptcy Law
Satisfied Customers: 15999
Experience:  14 years exp., CH 7 AND 13 Bankruptcy cases, AFL-CIO UNION PLUS, UFT NYSID AND ALL MAJOR UNIONS
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Long story short. I bought REO occupied property. Went through

Customer Question

Long story short. I bought REO occupied property. Went through eviction procedure. Granted judgement and writ of possession. Previous owner stop eviction by filing for bankruptcy.

I got the automatic stay to be lifted. Judge also dismissed the case and told previous owner he is unable to file for bankruptcy for 180 days. Previous owner has till June 5 to move out. I have the sheriff evicting them on June 11.

The judgement/eviction/writ was directed to the husband name & occupants. My question... Can they stop this eviction by having the wife file for bankruptcy since the husband filed individually to stop eviction last time?
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  WALLSTREETESQ replied 1 year ago.

WALLSTREETESQ :

Hello I am a licensed attorney here to help you with your question, please review my response and do not hesitate to ask for clarificati on

WALLSTREETESQ :

If the wife is on the lease she would be given an automatic stay,

WALLSTREETESQ :

however, since her spouses case was dismissed you can file an motion to lift the stay, and advise the court that this is a fraudulant filing, and the court should grant your motion,

WALLSTREETESQ :

Also, under the law, in order for the the bankruptcy filing to have any effect on a looming eviction in which the landlord has a state court judgment the tenant must pay one month of rent to the bankruptcy clerk immediately upon filing the bankruptcy petition. In addition to paying the rent to the clerk, the tenant must file a “certification” under penalty of perjury which states that (1) the judgment permits the tenant to stay in the premises upon satisfaction of the entire judgment amount and (2) the tenant has deposited with the bankruptcy clerk “any rent which would become due during the thirty (30) day period after the filing of the bankruptcy petition”.


If the tenant complies with the above requirements, i.e., pays the rent and files the certification (and serves the certification on the landlord), on the day that the bankruptcy petition is filed, the tenant is given a thirty day reprieve.

WALLSTREETESQ :

That is only due to the fact she was not a named party at the start

Customer:

There is no lease. They are the previous owners of the house.

WALLSTREETESQ :

If there is no lease,

WALLSTREETESQ :

and you are the legal owner,

Customer:

Yes

WALLSTREETESQ :

you can ask the trustee to have them pay a rental amount,

WALLSTREETESQ :

for them to stay,

Customer:

Maybe I need to make my case a bit more clear.

WALLSTREETESQ :

I understand,

WALLSTREETESQ :

this is a common tenant technique,

WALLSTREETESQ :

or home owner technique

WALLSTREETESQ :

under the bankruptcy law,

Customer:

The husband already filed bankruptcy and case was dismissed.

WALLSTREETESQ :

since she is not on record as filing a bankruptcy,

WALLSTREETESQ :

she would be given an automatic stay,

WALLSTREETESQ :

you would have the burden to file a motion to lit the stay claiming fraud,

WALLSTREETESQ :

in that since her husband filed and his case was dismissed, she has no intention on following through with the case,

WALLSTREETESQ :

and is doing this to prolong there stay in the home

Customer:

My eviction/judgement/writ of possession was only towards the husband

Customer:

The case is directed to Mr. XXXXX & occupants.

WALLSTREETESQ :

she should be considered an occupant,

Customer:

So it is possible for them to stop eviction again

WALLSTREETESQ :

yes,

Customer:

Okay thanks for the information.

WALLSTREETESQ :

the bankruptcy court, does not have her name or social listed, so when she files, it would be considered a separate case,

WALLSTREETESQ :

with a new automatic stay,

WALLSTREETESQ :

you would have to file a motion to lift the stay claiming fraud, and ask for sanctions and fees as well.

Customer:

Okay. I will do that if they do file for bankruptcy again. Hopefully they won't, but we shall see.

Customer:

I have already filed to lift automatic stay once, but I guess I may have to do it again.

Customer:

Thanks

WALLSTREETESQ, Attorney
Category: Bankruptcy Law
Satisfied Customers: 15999
Experience: 14 years exp., CH 7 AND 13 Bankruptcy cases, AFL-CIO UNION PLUS, UFT NYSID AND ALL MAJOR UNIONS
WALLSTREETESQ and other Bankruptcy Law Specialists are ready to help you

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